Reform of the EU’s Court System: Why a more accountable – not a larger – Court is the way forward

Recent media coverage of the EU Court of Justice
suggests that the period of ‘benign neglect by the powers that be and the mass
media’ – once described by Professor Eric Stein – may well be truly over once
and for all. The most unexpected aspect of this rather unique level of media attention
is that it does not directly concern any particular judicial ruling by a Court,
which, since it decided its first case in 1954, has issued more than 28,000
judgments and orders. Instead, the Court of Justice (CJ) and its President, Mr Vassilios Skouris, have been
subject to unprecedented media scrutiny following intense internal infighting
about a contentious proposal which officially aims to ‘reinforce the efficiency of justice at EU level’ by doubling the number of judges working at
the General Court (GC).

Before offering a review of the CJ’s diagnosis and
critically assessing the solutions defended by its President, it may be worth briefly recalling
that the GC – initially known as the EU’s Court of First Instance – was set up
in 1989 to
help the CJ cope with its increasing workload. To help in turn the GC cope with
a similar issue, the first EU
specialised ‘judicial panel’ was set up in 2005: Known as the EU Civil Service
Tribunal (CST), the jurisdiction is exclusively limited to disputes between the
EU and its civil servants and consists of 7 judges. By contrast, both the CJ
and the GC currently consist of 28
judges, with one judge from each Member State. The CJ is however also assisted by nine
Advocates-General.

2. The Court of Justice’s diagnosis

The casus belli, which has prompted the current debate about the EU’s
judicial architecture, is the increase in the number of new cases brought
before the GC (from 398 in 2000 to 912 in 2014); the stock of cases currently
awaiting to be decided (1,423 in 2014 and expected to rise to 1,600 in 2015);
and finally, the increasing number of actions for damages brought against the
EU due to the excessive length of proceedings before the GC on the basis of
Article 47 of the EU Charter, which guarantees a right to have cases heard
within a reasonable time.

While increasing workload
is not in itself a new phenomenon – and has indeed been a recurrent problem for
both the CJ and the GC – the latter’s growing workload has been seen as
particularly worrying. Indeed, in addition to a rapid increase in the number of
cases before it, the GC’s productivity has decreased despite an increase in the
number of both judges (due to the Union’s enlargement) and their legal
assistants known as référendaires
(see however here for a recent update from
four GC judges where it is submitted that 80% of the GC’s backlog has now in
fact been liquidated and that in the first four months of 2015, the number of
completed cases exceeded the number of new cases filed).

In parallel to these distressing
trends, the situation has begun to worsen as well
with respect to the CST due to the rather childish inability of the Member
States to fill two vacant slots since September 2014 – out of a total of seven
as previously noted – following persistent disagreement about how the principle
of rotation should be implemented.

3. The Court of Justice’s latest solution

In 2011, the CJ
initially refused to consider the creation of new specialised courts – a
solution which at the time was favoured by the GC itself – and suggested instead
the appointment of 12 extra judges at the GC. However, following persistent
disagreements between the Member States on how to rotate the appointments
between themselves, this preliminary solution was removed from a package of reforms to
the Statute of the Court of Justice.

This led the President of
the CJ to suggest last October the progressive doubling of the number
of GC judges (from 28 to 56). However, to mitigate the economic burden
engendered by the proposed doubling, the abolition of the CST was also
suggested – with its seven judges expected
to move to the GC –
and a gradual implementation
of the reforms, with an initial increase of 12
judges in 2015; a further increase of 7 in 2016 following the dissolution of
the CST and the transfer of its case-load to the General Court; and finally, a
last set of 9 additional judges to be appointed in 2019. The proposed
abolition of the CST was something of a surprise as most observers consider it a
success story and indeed, it has been presented as such by President Skouris
himself on
the occasion of its 5th Anniversary.

Be that as it may, the
CJ’s proposal would therefore ‘only’ result in the net creation of 21 extra
judges, at an
alleged net cost of €13.875m per year, assuming that there are 7 judges working
at the CST in 2016. While this amount does not appear to take into account the €168m for the construction
of a new tower, an expense which is however justified by the need to ‘repatriate’ staff who
have been working in prefabricated buildings since 1999, the economic cost of
the CJ’s proposal may be viewed as relatively modest. One may for instance
compare this estimated cost to the total amount of damages currently claimed
against the EU on the basis of Article 47 of the EU Charter, i.e., €26.8
million. The economic importance of the cases heard by the GC is also such that
the cost of the CJ’s proposal is not a significant argument one may raise
against it. We argue however that the solution put forward by the President of
the CJ (and recently endorsed by the Council) is not adequate both from
a structural and sustainability point of view.

4. Critical Assessment

As nicely summed up by
our colleague Steve
Peers, supporters of the CJ’s solution have relied on the
following arguments to support the proposal to progressively double the number
of GC judges:

1.It would be a more
flexible solution than the creation of specialised courts to the extent that
litigation may increase in areas not initially foreseen and that cases most
suitable for specialised courts tend to be repetitive and easy to deal with;

2.Keeping such cases
closer to the CJ would also make sense considering that the CJ may have to deal
with similar cases via national references for a preliminary ruling;

3.The appointment of new judges to the GC could be done
swiftly and would also avoid any pork-barrel politics should the specialised
courts not consist of a judge per Member State (as has been the case with the
CST);

4.Finally, the CJ’s solution would have the singular
advantage of simplifying the EU judicial system.

These are sound arguments
but unfortunately none of them are, in our view, empirically substantiated. The
lack of any proper prospective impact assessment of the CJ’s proposal is, in
this respect, particularly regrettable. Similarly, one may deplore the top-down,
not to say authoritarian, approach adopted by the President of the Court, which
suggests a deliberate attempt to avoid any meaningful discussion of reasonable alternative
proposals, such as the establishment of specialised courts with jurisdiction to hear and determine
direct actions in a specific area. The CJ’s proposal also marks a shift away from the principle of specialisation – endorsed by
the Masters of the Treaties and set to materialise into the creation of
subsequent specialised chambers, such as in trademark litigation (representing around
1/3 of the GC’s workload) – towards a generalist jurisdiction made up of two
judges per each Member State.

As for the argument raised
against the principle of specialisation – to avoid creating a court with a
‘rigid’ jurisdiction that might not be justified in the light of future
workload – well, the same argument could actually be invoked against the
creation of a ‘super-GC’ whose future caseload is unlikely to double in the
near future. This is especially true given the limited access to justice in
direct actions currently granted by the Treaty as interpreted by the CJ. More critically, we
submit that the doubling of GC judges is an unnecessary distraction from less visible
and arguably more decisive issues such as case management and productivity per
personnel unit. Those challenges, if tackled properly, would most likely bring
long-lasting benefits to the institution without entailing a radical restructuring
of the EU’s judicial system.

We therefore propose to
step back from what has become a largely emotive and not always evidence-based debate
in order to gauge whether an alternative diagnosis and set of reforms should
not be in order.

5. Thinking outside the dock

Although the dominant narrative
accompanying this debate highlights the existence of a dramatic backload, there
is a broader issue facing the ability of the GC to effectively deliver justice
today.

We submit that the real difficulties
encountered by the GC lie
in the broader set of challenges faced by such a unique transnational and
multilingual court whose jurisdiction has been growing in parallel to the transfer
of competences to it since it was first established in 1989. It is important to
realise that while the GC acts as an administrative court, invested with
fact-finding tasks, the CJ largely operates as a constitutional court. These two
courts, to oversimplify slightly, not only have jurisdiction over different
kinds of cases but also hear actions originating from different actors. If the
privileged client of the CJ is a national judge – largely embedded into its
domestic reality – those of the GC are predominantly private business operators.
Logically, therefore, the instruction of the cases should follow different
operational guidelines and linguistic regime. Yet they largely don’t and this
is so despite the reform of the rules of procedure.

Let us illustrate why this
assimilation of the two courts when it comes to their judicial organisation may
explain several of the many challenges faced today by the GC.

In both courts, the instruction
of a case is led by a Judge rapporteur (JR) nominated by the relevant President
according to unknown criteria (even though specialisation would seem to be
taken into account at times). He/she is expected, once the written procedure is
terminated, to draft a preparatory, internal document (rapport préalable). While the preparation of this working document
by the JR requires on average two weeks at the CJ, it generally takes a minimum
of 12 weeks at the GC (this is just an average: a trademark case might take
significantly less and a competition law case significantly more). This is
largely due to the fact that while the rapport
préalable constitutes a few pages at the CJ, it generally consists of a
fully-fledged document at the GC, which largely anticipates the draft judgment.

This difference itself
reflects two different approaches: Unlike the CJ, where collegiality manifests
itself on a weekly basis, allowing all Court members to exchange on the new
cases that have reached maturity, the current operation of the GC shifts more
responsibility to the chambers and in particular to the JR. In the absence of an
Advocate General, the JR at the GC and his/her référendaire find themselves
largely insulated from the rest of the Court and this for a significantly
longer period of time. This situation – which is further exacerbated by the
higher number of chambers – may mean a waste of precious time should the other
members of the Chamber disagree with the approach developed by the JR in full
autonomy over the previous months. A preliminary document stating the
orientation of the chamber, to be agreed upon before the Judge Rapporteur and
his/her legal assistant start working on the initial draft could be a promising
area of reform. And this is only one of several areas where creative and low
costs measures could be adopted to address some of today’s concerns regarding the
GC’s workload. Other instances of reforms – which have largely remained taboo
but would entail great savings – include a review of language arrangements
(e.g. English could be used as a default procedural language in all competition
or even ‘economic’ cases); a court fee to discourage vexatious or frivolous
litigation; new rules on the allocation of legal costs for the losing applicant;
a questioning of the automatic right of appeal, which would filter out, thus
discourage, further and usually unsuccessful additional litigation initiated by
wealthy parties, etc.

With respect to the judges
themselves, we would wish to see the President of both the CJ and GC Courts as
much concerned about quality than he is about quantity. Today, due to the
concern generated by the backlog of cases before both the GC and the CJ, the
metric of success of a judge has become the number of cases closed by each
judge every year. Yet this ranking-based approach, which heavily relies on
(internal) naming-and-shaming tools to induce judges to be more productive, has
failed to deliver on its promises. This has largely to do, in our opinion, with
the current external lack of transparency – and as a result, accountability – regarding
inter alia the productivity of the members of the Court. This is not to say
that the number of closed cases should be the alpha and omega of the Court’s
judicial policy. Indeed, we would advise a broader discussion of judges’ accountability
during their terms with the view of identifying quantitative as well as
qualitative performance benchmarks for judges and their cabinets to satisfy on
a year-on-year basis.

More emphasis on the
productivity of the members but measured in a less crude way may also produce
positive effects on the selection of new members. In this context, it would be a good idea to ‘europeanise’
– de jure condito – the judicial selection process further. All Member States
should be mandated to publish a public call, then to put forward a list of at
least three candidates for each judicial position, selected on the basis of a
number of additional obligations regarding gender balance, management skills and
professional background of the applicants. A preferred candidate should then be
indicated by the judicial panel provided for by Article 255 TFEU, which would take
into due account the specific needs, in terms of specialisation, of the Court. A
reform of this nature could help diversifying judicial selection while at the
same time preventing any national epistemic communities, be it academia, the
national judiciary or politics – from monopolising judicial recruitment at EU
level. The term of the EU judges’ mandate is another area ripe for reform and
we would personally favour a single, non-renewable term of nine years, with a
prohibition on any transfer of judges from the GC to the CJ during a judge’s
term to avoid disruptions.

Closely linked to the issue
discussed above is another sensitive one: the recruitment and supervision of
support staff. With a view to improving both quality and productivity, we would
prioritise a review of the feudal rules that currently govern the recruitment
and management of référendaires, i.e. the EU judges’ legal secretaries. In a
few words, we would favour the organisation of a regular civil service exam for
the whole CJEU to guarantee a common core of knowledge in a number of areas;
the adoption of updated and uniform entry requirements (e.g. candidates should
be qualified to practice law or have taught law full time at university level
for a minimum number of years); and the creation of a pool of qualified
candidates (or two pools with a junior and a senior stream) from which judges
could select their teams of legal secretaries who will be automatically
appointed and retained for the duration of the relevant judge’s term as long as
clear and pre-defined performance targets are met. To promote best practices,
compulsory and regular attendance at management (for judges) and legal drafting
(for legal secretaries) courses could be required. To favour stability and move
away from the current medieval arrangements, the legal assistants should no
longer be contractually linked to a particular judge but to the Court. It would
also be a good idea to introduce on the one hand, some basic elements of modern
employment law such as the EU rules that prohibit discrimination, and on the
other hand, internal whistleblowing rules as suggested by the
European Ombudsman in January 2014. Finally, to help EU judges and their
cabinets deal with unusually complex and/or time-consuming cases, an additional,
centralised pool of highly qualified legal secretaries in sub-specialised areas
of EU Law (e.g. EU taxation law) could be set up and its members be ‘seconded’
on a case-by-case basis to relevant cabinets. A similar experience gained by
the GC in its early days has been – according to many – very positive.

6. Looking beyond the workload challenge

Contrary to the
dominant narrative, we argued above that the real challenge facing the Court today
is more qualitative than quantitative in nature. We would therefore tend to
agree with the view defended by a number of EU judges that the proposal to
double the number of GC judges is ‘yesterday’s
solution for yesterday’s problem’. Rather than exclusively focusing on the
GC and its allegedly excessive backlog of cases, we would welcome a broader
reflection in the context of a more evidence-based and inclusive framework. The
urgent question today is how to ensure that the CJEU will remain an authoritative
institution delivering readable, prompt and cogent rulings in a unique
multicultural, multilingual and multi-legal context.

As is often the case in
life, what makes the difference is the human factor. The CJEU is no exception.
The solution to many of its challenges depends more on its understanding of
human nature than the law. One may hope that the CJ’s new President will prove
more willing to embrace a subtler understanding of the many dynamics operating
within a judicial body and more proactive than reactive when it comes to
judicial reform. In our view, a better system of incentives, a wiser use of
psychological insights (e.g. peer-pressure), and most fundamentally, a more
open court, promise more than the proposed mechanical addition of more judges. Reforms
of this nature would render the Court more accountable to the outside world and
enhance, as a result, its legitimacy and authority at what is a very difficult juncture
for the European project.